No. 05-04-00582-CR
Opinion Filed May 12, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 416th Judicial District Court, Collin County, Texas, Trial Court Cause No. 219-81522-03. Affirmed.
Before Justices WHITTINGTON, MOSELEY, and LANG-MIERS.
Opinion By Justice MOSELEY.
On a plea of not guilty, a jury convicted Chalom Pittman of aggravated sexual assault of appellant's stepdaughter, C.Y., a child. The trial court assessed punishment at thirty years' confinement and a $5,000 fine. In three issues, appellant contends the evidence is factually insufficient to support his conviction; the trial court erred in admitting into evidence certain extraneous bad acts; and he was denied effective assistance of counsel. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.2(a), 47.4. We affirm the trial court's judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
At the time of trial, C.Y. was sixteen years old. In the spring of 1998, C.Y.'s mother married appellant. C.Y. testified that, one evening in the fall of 1998, after she turned eleven, she and appellant were watching television on the floor of their apartment in Plano. According to C.Y., appellant lay behind her and asked her if she wanted "to feel something good." He moved his hand inside her shorts and underwear and rubbed inside her vagina with his fingers. Her mother was in the kitchen and did not see them. C.Y. did not tell her mother because she was "embarrassed." Subsequently, C.Y. tried to avoid appellant. C.Y. testified to two additional incidents of sexual contact at night in her bedroom after they moved to Garland. C.Y. testified that she tried unsuccessfully to keep appellant out of her room. C.Y.'s mother and appellant had a daughter, H.P.C.Y. testified that she did not tell anyone because she did not want her sister to go through a divorce like she did; she did not want to break up the family. In July 2002, after talking to a friend, C.Y. told her mother about the sexual contact. Her mother was "shocked." Appellant denied it. In the summer of 2002, the family moved to San Antonio. That fall, C.Y.'s mother told the police. C.Y. was interviewed by Hung Pho of Child Protective Services, San Antonio Detective Donald Spencer, and Plano police officer Cathy Stamm. On cross-examination, C.Y. admitted that the first time she brought up "any of this" was after appellant had talked about getting a divorce. Dr. Nancy Kellogg, a pediatrician, testified that C.Y. described weight fluctuation from stress and trouble with concentration, which are common symptoms of child sexual abuse. A physical examination revealed no evidence of sexual abuse. Appellant testified and denied the allegations. He testified that, in September 2002, he told C.Y.'s mother that he wanted a divorce and custody of H.P. On cross-examination, he testified about assault offenses against C.Y.'s mother and C.P., appellant's daughter, who was twenty years old at the time of the trial. II. FACTUAL SUFFICIENCY OF THE EVIDENCE
In his first issue, appellant contends the evidence is factually insufficient to support his conviction. A.
Standard of Review and Applicable Law In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Evidence can be factually insufficient when: (1) considered by itself, the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt; or (2) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. See id. at 484-85. The jury is the exclusive judge of the witnesses' credibility and the weight to be given their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Johnson, 23 S.W.3d at 8. A person commits the offense of aggravated sexual assault of a child if the person intentionally or knowingly causes the penetration of the anus or sexual organ of a child by any means. Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i) (Vernon Supp. 2004-05). A "child" is a person younger than seventeen years of age who is not the spouse of the actor. Id. §§ 22.011(c), 22.021(b)(1) (Vernon Supp. 2004-05). B.
Discussion C.Y. testified to the elements of the offense. See Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref'd.) ("The testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault."); Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005). Nevertheless, appellant argues that C.Y.'s testimony was inconsistent because (1) C.Y. testified that she tried to protect herself from appellant by, among other things, stacking boxes against her door, but she failed to provide these details to the investigators in 2002; (2) C.Y. had a motive to fabricate because she knew appellant wanted a divorce and custody would be an issue; and (3) Kellogg testified that there was no physical evidence of sexual abuse. However, the jury evaluates the witnesses' credibility and demeanor and resolves evidentiary conflicts. See Tex. Code Crim. Proc. Ann. art. 38.04; Johnson, 23 S.W.3d at 8. We have reviewed the evidence appellant cites, as well as all the record evidence. We conclude that the evidence is not too weak to support the finding of guilt beyond a reasonable doubt, nor is the contrary evidence strong enough that the State could not have met its burden of proof. See Zuniga, 144 S.W.3d at 484-85. Accordingly, we resolve appellant's first issue against him. III. EVIDENTIARY RULING
In his second issue, appellant contends the trial court erred in allowing the State to cross-examine him on extraneous bad acts and a prior adjudication for assault because this evidence was inadmissible and its probative value was substantially outweighed by its prejudicial effect. Specifically, appellant complains of the following evidence: his assault of C.P.; his unsuccessful probation for the assault of C.P. because of violation of probation conditions, including unsuccessful treatment for anger management; and his assault of C.Y.'s mother subsequent to the indicted offense. The record shows that the admissibility of certain physical and sexual abuse evidence was the subject of the State's motion in limine. In response, appellant argued, "Physical abuse, which they prosecuted and was pled to, I believe is grounds or opens the doors, but as far as the sexual, I don't believe that is the case." The trial court excluded evidence of sexual abuse. Thus, the trial court gave appellant the relief he requested. We resolve appellant's second issue against him. See Tex.R.App.P. 33.1 (appellant must obtain an adverse ruling from the trial court to preserve complaint for review). IV. INEFFECTIVE ASSISTANCE OF COUNSEL
In his third issue, appellant contends he received ineffective assistance of counsel because his counsel failed to object to the testimony of the State's witnesses Spencer, Pho, Kellogg, and Stamm on grounds that each witness made direct comments on the credibility of C.Y. A.
Standard of Review To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence (1) deficient performance, and (2) prejudice. Goodspeed v. State, No. PD-1882-03, 2005 WL 766996, at *2 (Tex.Crim.App. Apr. 6, 2005) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). A claim of ineffective assistance of counsel must be "firmly founded in the record," and "the record must affirmatively demonstrate" the meritorious nature of the claim. Id. (citations omitted). Further, [d]irect appeal is usually an inadequate vehicle for raising such a claim because the record is generally undeveloped. This is true with regard to the question of deficient performance-in which counsel's conduct is reviewed with great deference, without the distorting effects of hindsight-where counsel's reasons for failing to do something do not appear in the record. We have said that "trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Id. (footnotes and citations omitted). B.
Discussion Here, the record is silent as to counsel's strategy. See id. at *2-3 (record silent regarding counsel's trial strategy in failing to ask questions during voir dire and exercising two peremptory challenges on jurors who had already been excused). Nor can we conclude that the challenged conduct was "so outrageous that no competent attorney would have engaged in it." See id. at *2; cf. Andrews v. State, 159 S.W.3d 98, 102-03 (Tex.Crim.App. 2005) (in "extremely unusual circumstances," record on direct appeal contained all information showing deficient performance when defense counsel failed to object to prosecutor's misstatement of law on cumulation of sentences in closing argument of punishment phase and there was no reasonable trial strategy for such failure). Moreover, although appellant filed a motion for new trial, he did not allege in that motion that his counsel was ineffective and did not otherwise develop a record explaining why counsel failed to object to the evidence offered by these witnesses. See Goodspeed, 2005 WL 766996, at *1. Given the record before us, we cannot conclude counsel's performance was deficient. We resolve appellant's third issue against him. V. CONCLUSION
Having resolved appellant's three issues against him, we affirm the trial court's judgment.